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UN Security Council
Resolution 338
Date: 22 October 1973
Meeting no.: 1,747
Code: S/RES/338 (Document)

Vote: For: 14 Abs.: 0 Against: 0
Subject: Cease-Fire in the Middle East
Result: Approved

Security Council composition in 1973:
permanent members:

 CHN  FRA  UK  USA  USSR

non-permanent members:
 AUS  AUT  GUI  INA  IND
 KEN  PAN  PER  SUD  YUG

The three-line United Nations Security Council Resolution 338, adopted on October 22, 1973, called for a ceasefire in the Yom Kippur War in accordance with a joint proposal by the United States and the Soviet Union. The resolution stipulated a cease fire to take effect within 12 hours of the adoption of the resolution. The "appropriate auspices" was interpreted to mean American or Soviet rather than UN auspices. This third clause helped to establish the framework for the Geneva Conference (1973) held in December 1973.

The resolution was passed at the 1747th UNSC meeting by 14 votes to none, with one member, the People's Republic of China, not participating in the vote. The continued fighting despite the terms called for by the resolution, brought Resolution 339 which resulted in a cease fire.

Contents

Binding or non-binding issue

The alleged importance of resolution 338 in the Arab-Israeli conflict supposedly stems from the word "decides" in clause 3 which is held to make resolution 242 binding. However the decision in clause 3 does not relate to resolution 242, but rather to the need to begin negotiations on a just and durable peace in the Middle East that led to the Geneva Conference which Syria did not attend.

The argument continues; Article 25 of the United Nations Charter says that UN members "agree to accept and carry out the decisions of the Security Council". It is generally accepted that Security Council resolutions adopted in the exercise of its primary responsibility for the maintenance of international peace in accordance with the UN Charter are binding upon the member states.[1][2]

Scholars applying this doctrine on the resolution assert that the use of the word "decide" makes it a "decision" of the Council, thus invoking the binding nature of article 25.[3] The legal force added to Resolution 242 by this resolution is the reason for the otherwise puzzling fact that SC 242 and the otherwise seemingly superfluous and superannuated Resolution 338 are always referred to together in legal documents relating to the conflict.

Some scholars have advanced the position that the resolution was passed as a non-binding Chapter VI recommendation.[4][5] Other commentators assert that it probably was passed as a binding Chapter VII resolution.[6] The resolution contains reference to neither Chapter VI nor Chapter VII.

Arab-Israeli peace diplomacy and treaties

See also

References

  1. ^ Higgins, Rosalyn, The Advisory Opinion on Namibia: Which UN Resolutions Are Binding Under Article 25 of the Charter?, in 21 Int’l & Comp. L.Q. 286 1972 pp. 270-66, pp. 285-6
  2. ^ "Legal Consequences for States of the continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (1970)" in [1971] I.C.J. Reports pp. 4-345, pp 52-53
  3. ^ Rostow, Eugene V. The Illegality of the Arab Attack on Israel of October 6, 1973. The American Journal of International law, 69(2), 1975, pp. 272 - 289.
  4. ^ Adler, Gerald M., Israel and Iraq: United Nations Double Standards – UN Charter Article 25 and Chapters VI and VII (2003) [1]
  5. ^ Einhorn, Talia, "The Status of Palestine/Land of Israel and Its Settlement Under Public International Law" in Nativ Online No.1 Dec. (2003) [2]
  6. ^ Kattan, Victor,Israel, Hezbollah, and the use and abuse of self-defence in international law (2006) [3]

External links

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Source material

Up to date as of January 22, 2010

From Wikisource

United Nations Security Council Resolution 338
by the United Nations
←Indexes: United Nations Security Council Resolutions

Adopted by the Security Council at its 1747th meeting, on 22 October 1973 [1]

The Security Council,

1. Calls upon all parties to the present fighting to cease all firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this decision, in the positions they now occupy;

2. Calls upon the parties concerned to start immediately after the cease-fire the implementation of Security Council resolution 242 (1967) in all of its parts;

3. Decides that. immediately and concurrently with the cease-fire, negotiations shall start between the parties concerned under appropriate auspices aimed at establishing a just and durable peace in the Middle East.


[1] One member (China) did not participate in the voting.

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Pursuant to UN Administrative Instruction ST/AI/189/Add.9/Rev.2 available in English only, these documents are in the public domain worldwide:

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